KAMLA DEVI CHAUHAN Vs. MUNSIF ETAH

JUDGEMENT

(1.) THE petitioner's husband was declared a deserter with effect from 2nd September, 1971 during the operation in 1971 when in fact the Indian Army had supported the Bangla Desh Liberation. Against the said order of declaration, the deserter, the petitioner had filed a suit. THE said suit was decreed on 21st July, 1980. THE learned trial court, while decreeing the suit after analysing the evidence, has come to a finding that the petitioner's husband had died on duty during the operation when he was being airlifted for being dropped in Bangla Desh for participation in the liberation war of Bangla Desh. which is admittedly a war like condition inasmuch as Bangla Desh was liberated ultimately in December, 1971 which fact is not disputed. THE petitioner's husband as it appears from the evidence of his own soldiers that he was in the midst of the battle and he was sent to fight the battle and that the petitioner's husband had fought the battle on two occasions earlier and he was a brave fighter and he was not a soldier who would desert. Upon such finding, the said suit was decreed declaring that the petitioner's husband had died while on duty. THE appeal preferred against the said judgment was dismissed by the decree dated 15th May, 1981. THE judgment and decree, therefore, became final. THE decree having been put into execution, the Union of India had paid all the benefits available to the husband of the petitioner which were normally available. Subsequently the petitioner claimed special benefits arising out of the Government Order No. 200847/Pen-C/71, dated 24th February, 1972 on the ground that the petitioner's husband had died while fighting in war like operations or border skirmishes either with Pakistan on the cease-fire line or any other country as provided in clause (iij (a) of the said Government Order. THE learned trial Court by order dated 27th March, 1984 had held that the decree has been fully satisfied and, therefore, the petitioner is not entitled to any other benefit. Upon a revision being preferred, by order dated 4th February, 1985, the revisional court came to a finding that the executing court cannot go behind the decree. THE decree having been in the form of a declaration that petitioner's husband had died on duty and the same not being a declaration that the petitioner's husband had died in war like operation or border skirmishes, therefore, the petitioner is not entitled to the special benefit arising out of the said Government Order. It is against these two orders dated 27th March, 1984 passed by the learned Munsif, Etah in Execution Case No. 228 of 1981 arising out of the decree passed in Suit No. 35 of 1979 of the same Court and the order dated 4th February, 1985 passed by the learned Additional District Judge, IVth Court, Etah in Civil Revision No. 33 of 1984, the present petition had been moved.

(2.) ON the prayer of Mr. Shashi Nandan, leave is granted to amend the . petition so as to convert it into a petition under Article 227 of the Constitution of India.

(3.) THE said Government Order lays down that all soldiers died in operation against Pakistan commencing from 3rd December, 1971 would be entitled to the special benefits. THE said special benefit would also be admissible in the categories of personnel killed in action or disabled on account of injuries sustained as mentioned in different clauses in the said Government Order. Clause (ii) (a) includes death as a result of fighting in war like operations or border skirmishes either with Pakistan on the cease-fire line or any other country. A reading of the said provision shows that the clauses have a sweeping effect almost on all kinds of death during operations. THE scope is rendered very wide.